DILIP GOEL Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The minor victim allegedly aged about 15 years was said to have been sexually assaulted by the Appellant aged about 44 years, in a room of a Lodge, which led to the instant case. The Learned Trial Court convicted the Appellant of the offence under Sec. 3(b) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012) and under Ss. 342/376(2)(i) of the Indian Penal Code, 1860 (for short, "IPC"), vide the impugned Judgment, dtd. 18/12/2018 in Sessions Trial (POCSO) Case No.25 of 2017. The Order on Sentence dtd. 19/12/2018 prescribed the following;

(2.) The facts of the Prosecution case is that on 22-05- 2017, Exhibit 2, an FIR was received from P.W.2, the victim's stepfather stating that on 22/8/2017 at around 10.30 hrs. the Appellant, a labour contractor, had lured the victim (P.W.1) to a Lodge and sexually assaulted her. The FIR was accordingly registered on the same day under Sec. 376 of the IPC read with Sec. 4 of the POCSO Act, 2012, and investigation endorsed to P.W.20, the Investigating Officer (I.O.). On completion of investigation, Charge-Sheet was submitted against the Appellant under Sec. 376 of the IPC read with Sec. 4 of the POCSO Act, 2012. The Learned Trial Court on receipt of the Charge-Sheet framed Charge against the Appellant under Ss. 363/342 and 376(1) of the IPC and Ss. 3/4 of the POCSO Act, 2012. The Appellant put forth a plea of "not guilty" and the trial commenced with the Prosecution examining 20 (twenty) witnesses in a bid to establish its case, on closure of which, the Appellant was examined under Sec. 313 of the Cr.P.C. to enable him to explain the incriminating circumstances appearing against him. He claimed not to have been involved in the alleged incident. The final arguments were heard and the Learned Trial Court after examining the evidence on record convicted the Appellant, as detailed hereinabove.

(3.) Learned Senior Counsel for the Appellant contended that the Sec. 164 Cr.P.C. statement of the victim, P.W.1, before the Learned Trial Court indicates that there was no penetrative sexual assault. As per P.W.1, the Appellant had taken her to a Lodge and then fondled her body parts, no allegation of penetrative sexual assault was put forth by her. P.W.13 the owner of the Lodge where the alleged incident had occurred had seen the victim on the road outside the Lodge's gate and not inside the room or in the inside premise of the Lodge, raising doubts about the Prosecution case and the veracity of the Appellant's allegation. That, she complained to P.W.13 that the Appellant had verbally abused her, but made no allegation of sexual assault. P.W.16 the Doctor who examined the victim on the same day, found no signs of use of force or injuries on the person of the victim to reveal sexual assault. The blood group of the Appellant, as per P.W.17, the RFSL Expert, is "O", but the blood group found on the underwear of the victim was of the blood group "A". That, in fact, the victim was a married woman as emanates from the deposition of P.W.2 and P.W.15. Her date of birth was not proved by the said two witnesses although they are her family and no birth certificate was furnished to prove her minority. Relying on the decision of this Court in Mangala Mishra @ Dawa Tamang @ Jack v. State of Sikkim, Crl.A. No.36 of 2017 decided on 13/10/2018 : SLR (2018) SIKKIM 1373, it was contended that a photocopy, Exhibit 15, of the entry made in the school admission Register was furnished, but the entry went unproved. As per P.W.8, the Birth Certificate of the victim girl was not found in the school records and he had therefore furnished a photocopy of the relevant page of the school admission Register pertaining to the year 2007 to prove that the victim was born on 20/4/2002, viz., Exhibit 15. His evidence lacked personal knowledge of the entry. P.W.2 also shed no light regarding the entry in Exhibit 15 nor was he aware of the contents of Exhibit 2 which was scribed by P.W.3 on the dictation of the victim's mother. That, P.W.3 lent no credence to the Prosecution case as no evidence emerged in regard to the contents of Exhibit 2. The Prosecution failed to produce and examine the victim's mother in this context. The Seizure Memo, Exhibit 3, reveals that a total of Rs.400.00 in denominations of one hundred was seized by the Police and the I.O. had remarked that the money was given to the victim by the Appellant, but no investigation to unearth the reason for the money having been handed over to P.W.1 was undertaken. The evidence of the victim is untrustworthy and has failed to pass the test of a sterling witness. Strength was drawn on this count from the ratio of Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130. Hence, in view of the facts and circumstances enumerated, the impugned Judgment of the Learned Trial Court deserves to be set aside and the Appellant acquitted all the offences charged with.